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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Juan Manuel ORTIZ, a/k/a Juan Ortiz Alvear, Appellant.

Decided: October 29, 2001

DAVID S. RITTER, J.P., FRED T. SANTUCCI, SANDRA J. FEUERSTEIN and THOMAS A. ADAMS, JJ. Lynn W.L. Fahey, New York, N.Y. (Katherine R. Schaefer of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicolette J. Caferri, George Freed, and Gabriel Tapalaga of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered February 26, 1996, convicting him of attempted murder in the second degree and assault in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that his right to counsel was violated when his attorney was excluded from the viewing room during the lineup, and therefore the lineup identification evidence should have been suppressed.   However, there is ample evidence to support the hearing court's determination that defense counsel consented to remain in the lineup room during the viewing.   Furthermore, defense counsel fully participated in preparing the lineup and did not voice an objection to the viewing of the lineup.   Under these circumstances, counsel's viewing of the lineup from the lineup room did not violate the defendant's right to counsel (see generally, People v. Pena, 242 A.D.2d 546, 662 N.Y.S.2d 80;  see also, People v. La Clere, 76 N.Y.2d 670, 563 N.Y.S.2d 30, 564 N.E.2d 640;  cf., People v. Nelson, 234 A.D.2d 949, 652 N.Y.S.2d 168).

The prosecutor's closing statements were fair comments on the evidence, properly responsive to defense counsel's closing statements, and did not deprive the defendant of a fair trial (see, People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Gomez, 156 A.D.2d 462, 548 N.Y.S.2d 568).

The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.

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